Bar Watch Bulletin February 12, 2007

Today, we report from the ABA House of Delegates Meeting. Most of the recommendations were unanimously or nearly-unanimously adopted by the House. No salmon slips in opposition to any recommendation were introduced. Here are some of the new policy priorities of the Association: Recommendation 102A, recommending that domestic violence victims be targeted by legal programs that assist victims in seeking pardon, probation, and clemency, was adopted. Sponsors contended that the legal system has to develop a better understanding of the culpability of domestic violence victims, and these programs would ensure that they would receive better attention from the legal system.

Recommendation 102B, seeking reforms to the Prison Litigation Reform Act, was also adopted. Stephen Saltzburg, representing the Criminal Justice Section, emphasized the ABA’s past opposition to the PLRA. He stated the act brought “nothing we can be proud of.” The PLRA implemented a number of “shocking” prohibitions and limitations to inmate lawsuits. Saltzburg urged adoption as the “Constitution is not banned from prisoners,” and the “reach of justice doesn’t end when the jail cell closes.”

Recommendation 107, primarily sponsored by the Special Committee on Gun Violence, supported bans excluding guns from workplaces and private property. The sponsor stated that this recommendation followed earlier ABA resolutions on workplace violence. According to sponsor John Cruden, the Constitution has given special protections to private property rights. The protection of safety and life were among the highest forms of constitutional protection. Regulations in OSHA and the Brady Bill would provide backing for these additional restrictions. He emphasized that this recommendation “was not anti-gun;” rather, it was “anti-gun violence.” The resolution was adopted without opposition.

Recommendation 112, primarily sponsored by the Standing Committee on Medical Professional Liability, urged the adoption of “apology legislation.” Chair Janice Mulligan proposed that this resolution would enable the ABA to join with doctors to change the liability system. Statements of apology would offer closure for victims and survivors and limit litigation. Mulligan stated that this recommendation would not cover admissions of fault. It was adopted.

Recommendation 115, primarily sponsored by the Section of Individual Rights & Responsibilities, urged the expansion of the ABA’s Goal IX to include non-discrimination on the basis of sexual orientation and gender identity. ABA President Karen Mathis and ABA President-Elect Bill Neukom both endorsed the resolution. It was adopted without opposition.

Recommendation 10B, a late-filed resolution, urged “that the ABA join in efforts by state, local, and territorial bar organizations to defend attacks against the judiciary and oppose any measure that is proposed by any state legislation, referendum, or ballot initiative that would interfere with or impede the ability of the courts to apply independently the law and the Constitution fairly and impartially.” The recommendation was primarily sponsored by the Denver and Colorado Bar Associations in the wake of a ballot initiative in November 2006 calling for term limits on members of the judiciary. The sponsor noted that opponents of the Colorado ballot initiative had to raise $1.5 million to combat this attack. The sponsor also emphasized that because most voters do not understand the concepts of judicial independence and the impartial judiciary, the ABA needed to step in to defend these principles. The recommendation was adopted. Board of Governors member William Robinson vowed that the ABA would contribute financially against future initiatives such as the Colorado initiative.

Recommendation 10C, also a late-filed recommendation, urged a reaffirmation of the ABA’s commitment to pro bono service. New York Bar Association President Mark Alcott noted the commitment of many lawyers to domestic pro bono service opportunities. However, it was “hardest to get volunteers to go to isolated locations like Guantanamo.” These volunteers should be applauded and not subject to the recent criticism offered by then-Deputy Assistant Secretary for Detainee Affairs Cully Stimson. (Last month, Stimson said in a radio interview that major U.S. corporations should not do legal business with firms that are defending terrorist suspects detained at Guantanamo Bay. He also suggested some attorneys were being untruthful about doing the work pro bono, alleging they were “receiving moneys from who knows where.” He has since apologized and resigned.) Alcott stressed it was “unacceptable” for pro bono lawyers in America to be attacked. It was also unacceptable for the government to engage in such attacks. The message should be to offer “justice for all,” as stated in the Pledge of Allegiance. According to Alcott, “We want justice to fall like a waterfall all over America.” The recommendation was adopted.

The Florida Bar, the State Bar of Pennsylvania, the Litigation Section, and several other cosponsors urged Congress to take immediate action to enact a substantial pay increase for the federal judiciary, consistent with the recent proposal by Paul Volcker. One of Volcker’s recommendations is to increase district judge compensation to $261,300, up from $165,200. This would be the same percentage increase as the total percentage change in American worker wages from 1969-2006, when judicial salary increases stalled. Recommendation 10D was adopted.

Recommendation 106, urging the decriminalization of homelessness, was also adopted. The sponsors declared that the recommendation ensured dignity, and the criminalization of homeless conduct—i.e. arresting those who slept in parks or alleys, etc.—was both “reckless and counter-productive.” One of the sponsors admitted that some questioned why no remedies, other than reviewing relevant laws, were offered in the recommendation. The sponsor claimed they would have only been picked apart by critics.

Recommendation 200, the ABA’s new model code of judicial conduct, was also adopted after about two hours of discussion. The only minor opposition offered was the Minkoff Amendment, which urged striking language in Canon 1 concerning “impropriety and the appearance of impropriety.” The language, contained in the old Model Code, was nearly dropped in this updated version as a binding rule for judges. However, after the deletion attracted the recent attention of the New York Times, it was added back last week. Several proponents spoke in favor of maintaining the language, including former ABA President Michael Greco. He stated that even the appearance of impropriety is corrosive and damages judicial independence. Judges understand what “impropriety” means. Greco also used his time addressing the House to propose that a judicial code for the United States Supreme Court bears discussing, using the example of Vice President Dick Cheney’s hunting trip with Justice Antonin Scalia as rationale. For further details on the canons and rules of the new Model Code, see the recent edition of ABA Watch.

Other Remarks

Lord Peter Goldsmith, the Attorney General of the United Kingdom, addressed the House. He praised the work of the ABA, including its CEELI initiative and its efforts promoting the international rule of law. He echoed earlier criticism of Cully Stimson’s remarks, stating, “I assure you that remarks of that sort are viewed from across the Atlantic as unjust, unacceptable, and un-American.” He also discussed the difficulties of balancing national security and civil liberties. He stated that in all cases, the rule of law should be respected, and that certain, fundamental rights could not be tampered with. These rights include the freedom of speech, the right to a speedy trial, and the prohibition against torture. Lord Goldsmith asserted that Guantanamo was a “symbol of injustice... and should close.” We needed to fight the “struggle against global extremism and terrorism” not just through force, but “ideas and values.” According to Goldsmith, “The presence of Guantanamo makes it so much more difficult to do this. For all of us.”

In remarks to the House, ABA President Karen Mathis proclaimed, “Lawyers speak truth to power.” The recent remarks by Cully Stimson, the threats to the attorney-client privilege, judicial salaries, and presidential signing statements were all issues that lawyers should speak “truth to power.”

Former ABA President Michael Greco offered tribute to Father Robert Drinan, who recently passed away. Greco stated that Father Drinan served as a mentor to him since law schools. Father Drinan was the driving force behind the ABA’s call for a death penalty moratorium. Father Drinan’s “devout belief in the dignity of each human being” should serve as a model for the ABA.

Thomas Wells, who will become ABA President-Elect in August, addressed the House. He outlined what he perceived to be the core values of the Association. These values include responding to attacks on judicial independence, providing increased access to justice, encouraging diversity within the legal profession, and promoting the rule of law. This is important both internationally and domestically, citing last Fall’s South Dakota ballot initiative (termed “jail for judges” by Wells) and Cully Stimson’s remarks as reasons the rule of law is under attack. Wells alleged that some viewed the Bill of Rights as an “obstacle to overcome.” He encouraged the House’s efforts, as “liberty does not defend itself.”

Future ABA Leadership

William Hubbard spoke before the Nominating Commission meeting Sunday morning. He is expected to become the House of Delegates Chairman-Elect in August at the ABA’s Annual Meeting. Hubbard suggested that the Association needed to examine its declining membership share, as the ABA lacked the moral authority to describe itself as the national representative of the legal profession when only about 1/3 of all attorneys were members.

Candidates for ABA President-Elect for 2008 include Carolyn Lamm of Washington, D.C., Paul Moxley of Utah, and Jim Silkenet of New York.